Copyright Attack Sheet

Topics: Originality, Digital Millennium Copyright Act, Compulsory license Pages: 5 (807 words) Published: February 12, 2011
Prerequisite of copyright: 17 USC 102(a)
1.Fixation ~ 17 USC §102(a) and Const. “writing”
a.Tangible medium for more than transient time WITH authorization of CR owner; can be perceived 2.Originality ~ 17 USC 102(a)
a.Low threshold, original work of authorship (independent creation) 3.Modicum creativity ~ (Feist)
4.Subject matter ~ 17 USC 102(a)(1)
o(1) literary works, including software
oNOT facts, slogans, fonts, stock characters
oexempts performance by nonprofit or govt. §110(2)
o(2) musical works, including lyrics
oexempts performance by nonprofit or govt. §110(2)
o(3) dramatic works, including music
o(4) pantomimes and choreography
orequires fixation
o(5) pictorial, graphic, and sculptural works
o2D – problem of originality
o3D – problem of funcationality
o (6) motion picture and audiovisual works
o(7) sound recordings
olimited by §112 ephemeral recordings
o(8) architectural works
ooriginal + not dictated by functional concerns
ocan make/distribute pictorial representation of buildings if not 3D model and in public space §120 oDerivative works and compilation §103
oOriginality + fixation + use of preexisting material
oCollective works §201(c)
oidea, procedure, process, method of operation §102(b)
Baker v. Selden
ogovernment works §105
oIssues: idea/expression dichotomy, merger, functionality

Ownership and Transfer
Ownership ~ §201
Transfer ~ §201
oWritten instrument req. except if non-exclusive right
Works made for hire ~ §201(d), §202-205
Joint works ~ §201(a)
Duration ~ §302-304
oNotice ~ §401-406
oDeposit ~ §407
oRegistration ~ §408-412

WMFH Common law agency test:
Option A (a) Test to decide whether there existed an employment relationship: adopted - common-law agency law test •(1) Level of skill
(2) Source of instrumentalities and tools
(3) location of work – where was it performed?
(4) duration of the relationship
(5) ability of the commissioning party to assign additional projects to the hired party •(6) extent of the hired party’s discretion over when and how long to work •(7) method of payment
(8) hired party’s role in hiring and paying assistants •(9) whether the work is part of the regular business of the hiring party •(10) whether the hiring party is in business
(11) employee benefits
(12) tax treatment of the hired party
Option A (b) Restatement 2nd Agency §228 - to determine whether works created by salaried employees were made within the “scope of employment” •(1) is the work of the type employees hired to perform

(2) was work created substantially within time and space limits of employee’s job •(3) was the employee at least in part, by intention, to serve employer’s purpose

Exclusive Rights §106
(1) reproduction
copying by library and archives (§108)
automatic copying by computers (§512)
functionality of work §113(c)
ephemeral sound recording §112
single copy of software for personal use §117
non-profit blind §121
non-mechanical sound recording reproduction §114(b)
compulsory license §115
(2) Adaptation/derivative works
adapt single copy of software for personal use §117
(3) distribution
Functionality of work §113(c)
Non-profit blind §121
first sale §109
importation §602
(4) public performance
face-to-face teaching §110(1)
instructional broadcast §110(2)
public perception of transmission of single receiving apparatus §110(5) •compulsory licenses
secondary transmissions §111
jukebox §116
public broadcasts §118
(5) publically display the work
functionality of the work §113(c)
display in room only §109(c)
and same as public performance
(6) digitally perform sound recordings
rebroadcast of AM/PM §114
non-interactive internet §114
Moral Rights...
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